Comments on: Here We Go Again

By: Lesa

Lesa — Wed, 02 Jul 2008 08:22:36 +0000

The exemption here is of techical data in the public domain. Countries outside of 126.1 exceptions, if a product is designed from technical data approved in the public domain, would the product mfg from the technical data be exempt also if exported?

Thank you,
Lesa

By: Mike Deal

Mike Deal — Wed, 16 Apr 2008 13:01:39 +0000

Mr. L: That’s fascinating reading. Although the link you so kindly supplied is to a 2005 edition of the CFR, the references in the text of 32 CFR Part 250 refer to EAR as 15 CFR 369. The EAR hasn’t been in that CFR range in a decade. Part 250 also refers to “general licenses”, a term that hasn’t been used by DoC since it released the revised EAR in March of 1996.
If this was the Dept. of the Interior, that might be excusable, but since DoD is one of the reviewing agencies, and the one that pouts about Commerce all the time and even let one of its former employees go testify against Commerce supposedly on his own time, it is both absurd and abusive for DoD to be egging on criminal prosecutions when they are too darn lazy to keep up.

By: Mr. L

Mr. L — Wed, 16 Apr 2008 04:07:30 +0000

I do not find that Mr. Black’s assertions completely jive with the direction at 22 CFR 250 (See http://www.access.gpo.gov/nara/cfr/waisidx_07/32cfr250_07.html), which appears to be a codification of DoD Directive 5230.25 (See http://www.dtic.mil/whs/directives/corres/pdf/523025p.pdf). DoD Directive 5230.25 was revisited as recently August 18, 1995 – some ten years after the purported Executive’s loosening of restrictions on release of technical data to the public domain. DoD seems to be under the impression that if DoD has a quantifiable interest in technical data, the ITAR prevents its release to the public domain – regardless of whether contractual provisions address the issue.

Moreover, I believe DDTC principally views ITAR’s 120.11 as establishing those parameters upon which individuals may reasonably rely in determining whether information that has come into their possession is in the public domain, and, therefore, freely transferable without restriction. For information not squarely falling into one of the enumerated categories in 120.11, ITAR’s 125.4(b)(13) provides a mechanism via which information or technical data may be placed into the public domain. After all, if all one had to do to put technical data into the public domain was to release it, the technical data caveat at 123.16(b)(4) would be nonsensical.

Practitioners should be encouraged to act conservatively in this arena – more especially given the Mak verdict.

DDTC and DoD would likely argue that obtaining OSR release approval is really not all that hard.

By: john black

john black — Tue, 15 Apr 2008 15:21:59 +0000

First, thanks to the author for clarifying the previously published article Chi Mak case. I knew the guy’s analysis of ITAR “public domain” was wrong, but I was too lazy to research the case. Thanks.

Kimberly, the ITAR does not require prior US Government approval to put ITAR technical data in the public domain. Prior to December 4 (or maybe December 6) 1984, the ITAR was like that. But a Federal Register notice on that day changed the definition of public domain and made it clear that the ITAR does not require US Government prior approval for a company to put ITAR technical data in the public domain.

The exemption you refer to says if you go throught he DFOISR process and get ITAR technical data approved for public release, you may export it under an exemption–but remember exemptions can’t be used for exports to 126.1 countries. If you go through that process and then put the ITAR technical data in the “public domain” the information is “public domain” as is no longer ITAR technical data and may be exported to 126.1 countries because the ITAR does not apply to it.

Of course, if you have a contract that prohibits you from releasing technical data, if you release it by making it ITAR “public domain” you have violated the contract but not the ITAR.

Background: In the early 1980′s the Regan Administration issued a directive telling State and Commerce to open up “public domain” and what the EAR called “GTDA” (now known as “publicly available” in the EAR).

I can send you that Federal Register notice, or at least part of it, if you want. My email address is gtdu@aol.com–I hope I am not violating any rule by putting my email address in here. Thanks for not laughing at my email address.

By: Kimberly Fordham

Kimberly Fordham — Tue, 15 Apr 2008 11:58:50 +0000

“But if information is public domain under § 120.11, it isn’t technical data at all under § 120.10, and it can be exported without license and without reference to any exemptions.”

What is your analysis of how this relates to the exemption at 22 CFR 125.4(b)(13), which is normally applied to technical data which has been approved for the public domain? Pursuant to 126.1(a), data that has been approved for public release may be exported to proscribed destinations under this exemption. Was the conference material approved for release into the public domain by the USG? Was the material properly annotated with the ITAR exemption?

By: Mike Deal

Mike Deal — Tue, 15 Apr 2008 11:45:34 +0000

Excellent point Clif. Moreover, an exemption is generally an affirmative defense for which the defendant carries the burden of proof, but an exclusion goes to whether there is present an essential element of the offense, i.e., whether it was defense technical data, that puts the burden right where it ought to be, on the damnyankee prosecutors. Unfortunately, as we saw in the Alabama case, the prosecutors at this Dept. of Justice like to evade and circumvent the law by the simple expedient of a commodity jurisdiction/classification determination from DDTC, hardly an impartial party, that claims the material is ITAR controlled, and then claim that the determination is not subject to judicial review.